Miller & Co. v. Steele

Day, J. At the September term, 1873, it was held by a majority of this court that the demurrer to the petition was improperly sustained, and the cause was reversed. A petition for rehearing having been filed, we have carefully reviewed the question presented, and have become convinced that the former determination was wrong. The sections of the statute bearing upon this question are contained in the Revision of 1860, and are as follows: “ 2499. The personal property of the wife does not vest at once in the husband, but if left under his control, it will, in favor of third persons acting in good faith and without knowledge of the real ownership, be presumed to have been transferred to him, except as hereinafter provided. “2500. If the wife has such property which she leaves under his control, she must, in order to avoid the entire surrender of her interest therein, file for record with the recorder of deeds a notice stating the amount in value of such property, and that she has a claim therefor out of the estate of her husband; and if during her lifetime he dies or becomes insolvent, she shall be deemed a preferred creditor of the estate to [530] that amount without interest, and may hold and control the same in her own right, but this preference shall not prejudice the interests, of those creditors who became such after the property was placed under the husband’s control, and before the filing of the notice aforesaid, unless they had knowledge of her right in that respect.” “ 2502. Specific articles of personal property may be owned by the wife exempt from the husband’s debts, although left under his control, if, during his lifetime, and prior to its being disposed of by him, or levied upon for his debts, notice of her ownershi|> is filed for record with the recorder of deeds of the county. But such notice shall not exempt her property from liability for his debts contracted after it was left under his control, and before the filing of the notice aforesaid, except •as against those having knowledge of her rights.” „ property of the wile. At common law, the personal property of the wife vested at once in the husband. In this State the personal property of the wife becomes subject to the control and disposition of the husband, except as otherwise provided by statute. It does not vest at once in the husband. As between the husband and wife the property still continues to be that of the wife. But if left under the husband’s control, in favor of third persons acting in good faith, without knowledge of the real ownership, it will be presumed to have been transferred to him. This presumption can be rebutted only by pursuing the course prescribed in the statute. Property used in a house, occupied by the husband and wife, is considered as being in the possession of the husband, and under his control. Smith v. Hewitt, 13 Iowa, 94; Odell & Updegroff v. Lee & Kinnard, 14 Iowa, 411; Mazouck v. The Iowa Northern R. R. Co., 31 Iowa, 559. 2.-: —: [531] debts of^us-band. [530] If property is under the control of the husband at the time a debt is contracted, it is presumed that credit was given to the husband, upon the fact that the property under his control belonged to him, and was subject to his debts. Odell & Updegraff v. Lee & Kinnard, supra; Presnall v. Hubert, 34 Iowa, 539. In favor of a party extending credit [531] to the husband, without knowledge that the wife owns personal property under his control, there is a presumption of law that such property has been transferred to the husband. When this presumption arises, the property is, as to such person, exactly in the position it would.have been at common law, and is liable for the debt thus contracted. This condition of liability at common law was a continuous liability. It must also be so under the statute, unless the statute provides some mode of removing it. The search will be vain for any provision of the statute releasing the property of the wife from liability thus incurred. A notice of the wife’s owner-filed with the recorder of deeds of the county before the property is levied upon for the husband’s debts, will exempt the property from liability for such debts, provided they were not contracted whilst the property was under the husband’s control; or, if contracted whilst the- property was under the husband’s control, were contracted with knowledge of the wife’s rights. But even such notice will not exempt her property from' liability for debts contracted without knowledge of her rights, after the jnoperty was left under the husband’s control, and before the filing of the notice. Revision, § 2502. If the wife has personal property which she leaves under the control of the husband, she must, in order to avoid the entire surrender of her interest therein, file for record with the recorder of deeds a notice of her claim- Revision, § 2500. As the rights conferred by the statute are in derogation of the common law, -she must, in order to avail herself of those rights, pursue the course which the statute prescribes. Nothing else will avail. The intervenor; in her petition, sets forth certain facts, which, she claims, exempt her property from liability for her husband’s debts. As she claims affirmative relief upon the facts stated, it is incumbent upon her to set forth facts showing that she is entitled to the relief asked. ‘ She shows that the property in question is household furniture. That prior to the levy of the writ of attachment, she and her husband were living together in' the town of Albia, and that she* did not have on record a notice of her ownership of said property; [532] that before the levy of the writ, about Sept. 7th, her husband went to Ohio, and remained until tbe last day of December; that during his absence she was in the sole possession of the goods in controversy. These facts are not sufficient to entitle her to the relief asked. She should allege that the debt was not contracted whilst the property was in the joint possession of herself and husband, or that it was contracted with knowledge of her claim thereto. And it is doubtful whether she must not go further, and allege that notice of her claim was filed before the levy. See Myers v. McDonald, 27 Iowa, 391, in which this view was maintained by two members of the court, one expressing no opinion, and one dissenting. Tbe petition of intervention was insufficient, and the demurrer to it was properly sustained. Affirmed.